PHYLLIS E. BANKS, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent
for review of the Merit Systems Protection Board in No.
Phyllis E. Banks, Inglewood, CA, pro se.
KATRINA Lederer, Office of the General Counsel, Merit Systems
Protection Board, Washington, DC, for respondent. Also
represented by BRYAN G. POLISUK, Katherine M. Smith.
Prost, Chief Judge, NEWMAN, and Dyk, Circuit Judges.
E. Banks petitions for review of a decision by the Merit
Systems Protection Board ("Board") dismissing her
appeal for lack of jurisdiction. We affirm.
was hired by the Department of Veterans Affairs
("VA") on July 26, 2015, as a Medical Support
Assistant. Her appointment was in the excepted service and
was subject to a one-year probationary period. On March 2,
2016, within the one-year period, the VA notified Banks that
the agency planned to terminate her due to performance
issues. Rather than wait for the agency to terminate her,
Banks chose to resign her position, effective March 15, 2016.
appealed to the Board, asserting that her resignation was
involuntary and therefore constituted a constructive removal.
See, e.g., Cruz v. Dep't of Navy, 934 F.2d 1240,
1244 (Fed. Cir. 1991) (en banc). In an initial decision
dismissing Banks's appeal for lack of jurisdiction, the
administrative judge ("AJ") found that Banks was
not preference eligible and that the record contained no
evidence of prior federal service. Given these facts and that
Banks was still within her probationary period at the time of
her alleged removal, the AJ concluded that Banks was not an
"employee" under 5 U.S.C. § 7511(a)(1) with
the right to appeal adverse actions to the Board. The Board
therefore lacked jurisdiction. The AJ further noted
Banks's allegations of a hostile work environment and
retaliation, but concluded that these claims did not provide
the Board with jurisdiction under 5 U.S.C. § 7702(a) in
the absence of non-frivolous allegations of an agency action
independently appealable to the Board. See Garcia v.
Dep't of Homeland Sec, 437 F.3d 1322, 1335 (Fed.
Cir. 2006) (en banc). Banks petitioned the Board for review.
Board upheld the AJ's dismissal of Banks's appeal for
lack of jurisdiction. In doing so, the Board addressed
evidence not considered by the AJ indicating that, prior to
being hired by the VA, Banks had been currently and
continuously employed by the U.S. Postal Service for
approximately three years as a Mail Handler. The Board
concluded that this prior federal service did not give Banks
a right to appeal because the Postal Service is not an
"Executive agency" under 5 U.S.C. §
7511(a)(1)(C)(ii). The Board issued a final order dismissing
Banks's appeal for lack of jurisdiction.
petitioned for review of the Board's final order. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
review the Board's jurisdictional determinations de
novo and its factual findings for substantial evidence.
See Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998). "The Board's statutory
interpretations are reviewed for correctness as a matter of
law." Ellison v. Merit Sys. Prot. Bd., 7 F.3d
1031, 1034 (Fed. Cir. 1993).
Board's jurisdiction is limited and extends only to
actions "appealable to the Board under any law, rule, or
regulation." 5 U.S.C. § 7701(a). As relevant here,
5 U.S.C. § 7513(d) permits an "employee" to
appeal certain adverse actions to the Board, including
involuntary resignations that are deemed constructive
removals. See, e.g., Cruz, 934 F.2d at 1244. For the
purpose of § 7513(d), however, the term
"employee" is defined-in relevant part-as "an
individual in the excepted service (other than a preference
eligible)" who is either "not serving a
probationary or trial period, " 5 U.S.C. §
7511(a)(1)(C)(i), or "has completed 2 years of current
continuous service ... in an Executive agency, "
id. § 7511(a)(1)(C)(ii). An individual may
qualify as an "employee" ...